Citation Nr: 21026121 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-20 230 DATE: April 29, 2021 ORDER Entitlement to a 30 percent disability rating for bronchitis is granted. REMANDED The issue of entitlement to a disability rating higher than 20 percent for residuals of a right ankle injury is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the evidence has not indicated Forced Expiratory Volume (FEV-1) of 56- to 70-percent predicted; FEV-1/ Forced Vital Capacity (FVC) of 56 to 70 percent; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method DLCO (SB) 56- to 65-percent predicted; daily inhalational anti-inflammatory medication; at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 2. The evidence is in a state of relative equipoise regarding whether bronchitis has required daily oral or inhalational bronchodilator therapy. CONCLUSION OF LAW The criteria for a 30 percent disability rating for chronic bronchitis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.97. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March to September 1989, and from December 1990 to September 1991. These issues come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). These issues were remanded by the Board in February 2019 for further development. The case is again before the Board for appellate review. Of note, the Veteran attempted to opt into a modernized review of these issues on appeal pursuant to the Appeals Modernization Act (AMA), by submitting VA Form 10182 in February 2021. However, his opt-in request was untimely, and the Board had already activated a legacy (non-modernized) appeal for these issues. See March 2021 BVA Letter. Consequently, the Board will continue to adjudicate the appeal in the legacy system. Increased Rating – Respiratory Disability The Veteran has been service connected for bronchitis since September 1991. The disability has been rated 10 percent disabling since November 2008. He claims entitlement to a higher disability rating. In the December 2011 rating decision on appeal, the RO denied his claim. Law and regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The section of the Rating Schedule for evaluating the respiratory system is found under 38 C.F.R. § 4.97. This section provides that respiratory disorders rated under Diagnostic Codes (DC) 6600 through 6817 and 6822 through 6847 will not be combined with each other. Rather, a single rating will be assigned under the DC that reflects the predominant disability, with elevation to the next higher evaluation if the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (a). The RO has rated the Veteran’s bronchitis under DC’s 6600 and 6602, which rate chronic bronchitis and bronchial asthma, respectively. 38 C.F.R. § 4.97. These provisions authorize ratings of 10, 30, 60, and 100 percent. Inasmuch as the disability at issue has been rated 10 percent disabling throughout the appeal period, the Board will limit its discussion to whether higher ratings are warranted. Under DC 6600, the next-highest rating of 30 percent is warranted for FEV-1 of 56 to 70 percent predicated, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) of 56 to 65 percent predicated. Under DC 6602, the next-highest rating of 30 percent is warranted for FEV-1 of 56 to 70 percent predicated, or; FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. When evaluating respiratory conditions based on pulmonary function tests (PFTs), post-bronchodilator results are to be utilized in applying the evaluation criteria in the Rating Schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator values are to be used for rating purposes. 38 C.F.R. § 4.96 (d)(5). Additionally, when there is a disparity between the results of different PFT's so that the level of evaluation would differ depending on which test result is used, the evaluation is to be assigned based on the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96 (d)(6). When the PFT’s are not consistent with clinical findings, evaluation based on the PFT’s is still acceptable unless the examiner states why they are not a valid indication of respiratory functional impairment in such a particular case. 38 C.F.R. § 4.96 (d)(3). If the DLCO (SB) test is not of record, evaluation based on alternative criteria is acceptable as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96 (d)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. Evidence and analysis The Veteran filed an increased rating claim for his service-connected bronchitis disability in July 2010 contending that that his bronchitis symptoms had increased in severity and warrants a higher than his current 10 percent disability rating. Thus, the question before the Board is whether his symptoms are severe enough to meet the criteria for a rating higher than 10 percent under DC 6600 or DC 6602. 38 C.F.R. § 4.97. The evidence in this matter consists of lay statements from the Veteran, private and VA treatment records, and VA compensation examination reports dated in April 2011 and October 2019. During the Veteran’s first VA respiratory examination in April 2011, the Veteran reported that he first started experiencing respiratory issues in 1989, and started treatment with antibiotics in 1991; that since then, he has experienced respiratory symptoms intermittently, with periods when such symptoms were in remission. These reported symptoms include a history of productive cough, wheezing, dyspnea, and asthma; wheezing noted as daily, and dyspnea on moderate exertion. The Veteran also reported the daily use of an inhaled bronchodilator and albuterol nebulizer three times weekly in the evenings, but no use of oral steroids. Pulmonary function testing performed during this April 2011 examination reflected findings of FEV-1 at 104 percent and a FEV1/FVC at 81 percent; post bronchodilator results for diffusion were not provided as no bronchodilator response was noted; diffusing capacity was noted as normal. During the most recent VA respiratory examination, conducted in October 2019, the Veteran reported that he is doing better since he quit smoking in 2017, and reported that he uses his inhalers regularly; specifically, Albuterol inhaler, and a nebulizer machine as needed, which he noted gives him relief. The examiner reported that the Veteran’s respiratory disability does not require any of the following: the use of oral or parenteral corticosteroid medications, the use of oral bronchodilators, and the use of antibiotics and outpatient oxygen therapy. However, he confirmed that the Veteran’s current respiratory condition does require the use of inhaled medications, specifically, inhalational bronchodilator therapy. The examiner further reported that the Veteran does not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his bronchitis diagnosis. And the PFT conducted during the examination noted pre-bronchodilator findings of FVC: 89% predicted; FEV-1: 88% predicted; FEV-1/FVC: 79%; DLCO: 88% predicted; and post-bronchodilator findings of FVC: 96% predicted; FEV-1: 97% predicted; FEV-1/FVC: 81%. DLCO was determined to be most accurate in reflecting the Veteran's level of disability. The examiner also reported that the Veteran does not have multiple respiratory conditions and that his bronchitis does not impact his ability to work. VA treatment records reflect PFT results from July 2013 which were as follows: FVC at 88 percent; FEV-1 at 82 percent; FEV1/FVC at 80 percent/75 percent; from March 2016, acknowledgment of the Veteran’s asthma diagnosis and that he uses albuterol inhaler and nebulizer as needed; Veteran reported that he gets occasional coughing spells at night, and that overall, his symptoms are controlled with his current medications; from September 2016: notation that that the Veteran was on medication for asthma, that he has not received PFTs since 2013; Active condition progress notes reflect prescription of Albuterol Sulfate Inhalation Solution, 0.083% 2.5 mg*/3 ml, an active nebulizer for inhalation as needed for breathing; PFTs from 2011/2013 were noted as normal. The Board notes that the Veteran’s VA treatment records are not inconsistent with the findings in his October 2019 respiratory condition examination. Specifically, all of the Veteran’s PFT readings (2011, 2013 and 2019) on record reflect that he falls within his current 10 percent evaluation. As the results of October 2019 VA examination were issued following a review of the Veteran’s record and an in-person examination of the Veteran and are not contradicted by any evidence of record, the Board has afforded this examination significant probative weight. The evidence of record does not show that there is FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. As such, the Board finds that a rating higher than 10 percent is not warranted under DC 6600. 38 C.F.R. § 4.97. A higher rating is warranted under DC 6602, however. Although a higher rating is not warranted under this DC for PFT scores addressing FEV-1, FVC, or DLCO, a 30 percent rating is warranted for the evidence indicating daily inhalational bronchodilator therapy. The Veteran has reported the daily use of an inhaler. The VA treatment records document prescription of an inhaler for daily use. The records indicate frequent refills for this medication. And the October 2019 VA examiner noted inhalational bronchodilator therapy. Although the examiner characterized the use as “intermittent[,]” the evidence is in a state of relative equipoise regarding whether the use is daily as the Veteran claims, and as the VA treatment records indicate. 38 C.F.R. § 4.97; see also Alemany and Mittleider, both supra. The next-highest rating of 60 percent is not warranted under DC 6602, however. Under this provision, a 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 38 C.F.R. § 4.97. As detailed above, the FEV-1 and FVC scores do not approximate these levels. Nor has the evidence indicated at least monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic (oral or parenteral) corticosteroids. Indeed, the October 2019 report specifically found an absence of such treatments. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believes that he meets the criteria for a higher disability rating, his complaints, and the medical findings do not meet the schedular requirements for an evaluation higher than the 30 percent rating granted here. In sum, a 30 percent rating is warranted under DC 6602 based on evidence indicating daily inhalational bronchodilator therapy. However, the evidence preponderates against the assignment of the next-highest rating of 60 percent. As the preponderance of the evidence is against the claim for a higher rating, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating higher than 30 percent must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND The claim of entitlement to an increased rating for right ankle disability, along with the claim of entitlement to a TDIU, must be remanded. The February 2019 remand requested medical inquiry into the right ankle claim. In response, the Veteran underwent VA examination in October 2019. In the month prior to the examination, the Veteran underwent right ankle surgery. As noted by the VA examiner, the Veteran was unable to fully participate in the examination due to residuals of surgery (e.g., post-operative splint). As such, a new examination should be conducted. The October 2019 examiner reported that the Veteran’s range of motion (ROM) was outside of normal range but considered normal for the Veteran because he was being examined within a month of his ankle surgery. Further, the Veteran’s post-surgery evaluation report (conducted September 23, 2019) advised of specific restrictions up to eight weeks after his surgery which included not being able to put weight on his right ankle and being unable to walk without the use of crutches/ knee scooter. This VA examination was conducted less than 4 weeks after his right ankle surgery. Nonetheless, the VA examiner reported that the functional impact of the Veteran’s right ankle disability includes moderate pain with motion which has negatively impacted the Veteran’s employability (functional impact). The Veteran also maintains that the severity of his right ankle disability includes chronic persistent pain, which a prior unsuccessful right ankle surgery (August 2014) has not corrected, and that he has been advised that he may need to have future surgeries. See, December 2020 Correspondence. The Board further notes that physical evaluation of the Veteran’s right knee (reflected in his treatment records) right before his September 2019 knee surgery reflect normal neurovascular status with pain on palpation and range of motion and moderate lateral instability with inversion of the right ankle. Further, A March 2015 status clinical report (status post August 2014 revisional right lateral ankle stabilization surgery) reflect a notation of the Veteran’s report of “right chronic ankle pain.” Following his most recent right ankle surgery, an April 29, 2020 physical therapy consult note reflects the Veteran’s description of the history and symptoms of his right ankle disability as follows: [r]ight ankle pain began s/p significant injury during a fall 1999 with subsequent multiple right ankle stabilizing surgeries. States he has used many different braces and orthotics. States now his ankle has been very swollen. States for the last few months, he tries to spend more time on his feet, but has significant pain and swelling. States "I just sit around all day, I don't play sports, I don't ride my bike -I'm too afraid I'm going to hurt my ankle again." Endorses significant pain and swelling requiring an injection Monday 4/27/2020. Returns to ortho surgeon in 2 weeks.]” Given these facts, the Board finds that a remand for a new examination, including for extraschedular consideration under 38 C.F.R. § 3.321(b)(1), is warranted. The TDIU claim in intertwined with the right ankle claim so it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Include in the claims file any outstanding treatment records with regards to the Veteran’s right ankle disability, particularly any orthopedic treatment or surgical records after October 2019. 2. Schedule the Veteran for an appropriate examination to determine the current severity of service-connected right ankle disability. The examiner should review the claims file. Any testing deemed necessary, to include X rays of the Veteran’s right ankle, should be completed. The examiner must measure range of motion on active motion, passive motion, with weight-bearing, and without weight-bearing. The examiner should note to what extent pain limits such motion. Any instability or dislocation of the right ankle must be identified and/or ruled out. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must attempt to elicit information regarding the degree of functional loss after repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s right ankle disability alone and specifically discuss the effect of the Veteran’s right ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or that the examiner does not have the knowledge or training. (Continued on the next page) 3. Refer the issue of entitlement to an extraschedular rating for right ankle disability to VA's Director of Compensation Service. 38 C.F.R. § 3.321 (b)(1). C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.